In re Goetschius' Estate

The testator, Harmon Goetschius, died on or about August 19, 1859, leaving a last will and testament, which

“I give, bequeath, and devise to my beloved wife, Fanny, the use and occupation, income, and profit of all my real and personal estate, to have and to hold the same for and during her natural life; and I do further order and direct that my sons, John Henry and George, shall cut, haul, and prepare for burning, firewood sufficient for her use; and, further, it is my wish and desire that she remain in the house we now occupy, but if she prefers to take up her residence with any other person or place, she is at liberty to do so; and she is at liberty to surrender her claim, or any part thereof, to my estate to my children, if she thinks proper; and after'her death I give, devise, and bequeath my real and personal estate to my children and grandchildren in manner and form following, to wit.”

Here follows a devise of a parcel of land to his daughter, Catherine; a devise to his sons, John Henry and George, of the remainder of his real estate in the town of Ramapo; a bequest of the sum of $800 to Catherine Louisa, the daughter of the testator’s deceased son, Stephen, to become due and payable when she shall arrive at the age of 21 years, but if the testator’s wife, Fanny, is living at that time, then to become due and payable to her one year after the death of his said wife; a bequest of $100 to a grandson, Harmon Goetschius Bogart, together with certain specific articles of personalty; a bequest to Elizabeth Bogart and Harmon Goetschius, children of the testator’s' deceased daughter, Maria, each of $500, 'o become due as they respectively arrive at the age of 21 years, or, if the testator’s said wife is then living, then to become due one year after her death, and in certain contingencies to the survivor; a legacy of $100 to Henrietta, the widow of testator’s son, Stephen; a devise and bequest of the portion of the estate of George M. Goetschius, deceased, which the testator expected to receive on the distribution of that estate, to his daughter, Catherine, and his two sons, John and George; and a devise and bequest of all the rest, residue, and remainder of his estate to his three children, Catherine, John, and George, and his grandchildren, Catherine Louisa Goetschius, Elizabeth Bogart, and Harmon Goetschius Bogart, to be equally divided between them, share and share alike.

The executors here having retained the custody and management of the personal estate, the executors of the will of the widow claim that they are accountable for the same, as executors, for both principal and income. I am not fully convinced that such contention is well founded. If the income was collected by them without power under the will, then they become liable individually, and this court would have no jurisdiction to entertain an accounting therefor. In re Cooley, 6 Dem. Sur. 77, and cases there cited; In re Blow, (Surr.) 11 N. Y. Supp. 193 . But if it be assumed that the executors, as such, are here accountable for the income, upon the whole case it does not appear that they have been shown to have any balance thereof in their hands. The testimony discloses that the personal estate has been in part invested and in part used and applied to the individual purposes of the executors. They are chargeable with such interest as the evidence—which is without conflict—discloses that the investments earned, as well as for all profits realized on the sale or exchange of the securities, for they cannot make any individual gain from the trust funds. In re Butler, (Surr.) 9 N. Y. Supp. 641 . For such portion of the funds as they used for and applied to their individual benefit, they must be charged with the legal rate of interest then prevailing. It is not a case for charging compound interest, under the circumstances. In re Kennedy, (Surr.) 9 N. Y. Supp. 552 . This income, however, was payable to and belonged to the widow. The accounting executor claims that all of it was paid to her in her lifetime, as the same was collected, either in cash, coupons, payments in her behalf, or by goods which she received from his store. But three receipts, however, are produced which show payments of interest collected. These were given in 1864 and 1865, and are for interest accrued on savings bank deposits and a bond and mortgage. The surviving executor testified to his having paid the widow all income received by them, and, for the interest lawfully due the widow from the executors for the funds applied to their personal use, that they paid her with cash, goods from their store, and by paying taxes for her at her instance, which she, as life tenant, was bound to pay, and produced receipts showing such payments. The executor is somewhat corroborated by other witnesses, who knew of payments made to the widow, and who knew of her obtaining goods from the executors’ store. Sometimes the widow paid for goods she received, which lends an inference that the executors had paid her all accrued interest, for she would most probably not have paid for any goods if the executors were indebted to her for income to which she was

As to the principal personal estate, the surviving executor is accountable for the same. In his inventory he charges himself with $2,280.10 of assets. As against this, he is entitled to credit for the $8.75 of accrued interest paid the widow; also, the value of the articles of personal property which he placed in the charge of the widow for her use, to which she was entitled under the will, as the same appears to have been lost by ordinary use and wear by her, except the horse, bought by the executor George Goetschius for $45, and for which he never paid. As that executor had an equal right to the custody of the funds and properties of the estate, I do not think, under the authorities, that the accounting executor is liable for that item. In re Demarest, (Surr.) 9 N. Y. Supp. 292 . As to the credit in Schedule C, for the payment of $150 for interest upon the $100 note of the testator, held by George J. Snider, I do not consider that the same is allowable. The executors had moneys in their hands out of which the note should have been paid and discharged within a reasonable time after they entered upon their administration of the estate, ■ and they could not legally fail so to do, and charge the estate with the accruing interest for the long period of time that has since elapsed. In re Babcock, Id. 554. The item of $15, credited in the same schedule for legal services on this accounting, is not properly there. That is a matter for adjustment upon the allowance and taxation of costs in this proceeding. For the balance of the principal of the estate, the accounting executor is chargeable with such interest or income as may have been earned or accrued thereon, where invested, since April 19, 1891, the date of the death of the widow; and as to the remainder, which seems to have been appropriated to their own use by the executors, the accounting executor must be charged' with legal interest from the same date. The increase or decrease which resulted on the sale or exchange of securities is (fchargeable to the principal estate. In re Lawrence, (Surr.) 7 N. Y. Supp. 332 . The credit of $500 in Schedule B, being one-half of the $1,000 which the executors used in their business, cannot be allowed. That was money of the estate which went into their partnership business,

The inventory is not before me, and it may be that the amounts and values herein stated are incorrect, and therefore, upon the settlement of the decree, the same may be therein corrected. I have simply indicated the rules in conformity to which the accounts must be adjusted and settled by the decree. The amount for which the accounting executor thus appears to be liable must be decreed to be applied by him, first, in payment of the costs and expenses of this accounting; then the burial expenses, if any, unpaid; next, in discharge of the debts of the testator; and the remainder to the legatees, agreeably to the provisions of the testator’s will.